Judge: Arkansas must identify death penalty drugs

The Arkansas Department of Correction must identify the manufacturer, seller, distributor and supplier of all lethal injection drugs used in executions by Oct. 21 or otherwise object to the disclosure, Circuit Judge Wendell Griffin ruled Monday (Oct. 12). 

Griffin set the evidentiary hearing on the plaintiffs’ motion for declaratory judgment and preliminary injunction for March 1-2. A pretrial hearing is set for Feb. 26.

Arkansas lawmakers earlier this year passed a law blocking disclosure of who provides the state with drugs used in lethal injections.

On Friday, Griffin stayed the scheduled executions, the first two of which were set for Oct. 21.

The plaintiffs are the eight convicted inmates whose appeals have been exhausted and whose execution dates have been set: Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams and Don Davis; as well as a ninth death row inmate, Ledelle Lee. The Arkansas Department of Correction and director Wendy Kelley are listed as the defendants.

The inmates sued claiming as unconstitutional a new Arkansas law that shields the state from revealing information that could identify its execution drugs’ manufacturers and sellers. The law was passed because drug manufacturers’ reluctance to being identified with the death penalty made procuring the drugs difficult. The inmates argued that the lack of information about the drugs exposed them to the risk of pain and suffering.

Gov. Asa Hutchinson (R) in September set the first execution dates for Ward and Davis for Oct. 21. Prior to setting those dates, he said he expected legal challenges. Arkansas has not carried out the death penalty since 2005.

Under Griffin’s ruling, defendants are ordered to produce by Oct. 21 un-redacted package inserts, shipping labels, lab test results and product warnings for any drugs that will be administered during the execution. 

The process to restart executions in Arkansas began June 29 when the U.S. Supreme Court ruled in a 5-4 opinion that Oklahoma could continue with its plans to carry out lethal injections. The genesis of the issue began when production of sodium thiopental or pentobarbital was limited or discontinued by drug companies. Some states, including Oklahoma, began using midazolam as part of a standard three-drug lethal injection process for death-row inmates.

Prison systems around the country have had difficulty obtaining drugs for lethal injections as manufacturers have either refused to sell the drugs for execution purposes or they have decided against it to avoid the publicity and protests that accompany the sales.

Arkansas Attorney General Leslie Rutledge said in late March that Arkansas has 32 inmates on death row with eight of those having exhausted all appeals. Arkansas has not had an execution since 2005.